Authored by Mak Gustafson
Kitsap County is a sleepy summer destination in the sound of Western Washington. Known for some of the most scenic wetlands and waterfowl wildlife viewing in the United States. Adding another feather to its plumage, Kitsap County District Court is the source of a landmark decision concerning the blanket suppression of key evidence used by the state in Driving While Under the Influence charges. The Washington v Keller, ruling will likely lead to a great deal of additional appellate litigation throughout Washington. On June 13, 2002, after the Court sat en banc ---meaning all four judges participated --- to hear a suppression motion regarding blood alcohol test results from a breath administered test, specifically a Dräger administered test that was administered to the accused, Keller, in this case. In summary, Dräger’s admissibility has likely sang its swan song.
Key language from the Kitsap County District Court ruling was that:
“The State has failed to satisfy the Baker and RCW 46.61.506 foundational requirements by producing prima facie evidence that the Dräger does not read mouth alcohol as deep lung air alcohol as determined by the scientific method chosen by the state toxicologist.
Keller’s Dräger generated breath test printout is not admissible because the printout is excluded under the rules of evidence, specifically ER 702, ER 401, ER 402, and ER 403.
As of today’s date, Dräger generated breath test printouts are also not admissible in any Kitsap County District Court cases because the State is unable to produce prima facie evidence of admissibility as required by Baker and RCW 46.61.506.” Keller, DRÄGER FINDINGS OF FACT AND CONCLUSIONS OF LAW, pg 5 of 89 (2022).
What this finding about the Dräger results and their admissibility means in the simplest terms is that if you are charged with any intoxicated driving related offenses in Kitsap County District Court, and the State (also known as the Prosecutor) attempts to introduce any test results generated by a Dräger breathalyzer machine against you, you and/or your lawyer should be filing an immediate motion to suppress any such breath test results generated by the Dräger machine because as of this June 13, 2022 ruling by the Kitsap County District Court there is a blanket prohibition on admissibility of Dräger results within all of Kitsap County District Court proceedings. Dräger results admissibility will soon be as dead as the dodo. Not only is this decision pertinent to current proceedings in Kitsap County District Court for purposes of suppression, but this finding by the Kitsap County District Court is also likely to inspire, impact, or otherwise shape other related appellate litigation as well. This is because the Dräger machine has been operated incorrectly for over a decade and this has resulted in a staggering number of evidentiary violations in an overwhelming number of cases:
Since being put into service in Washington in 2010, the Dräger has never conducted the plus or minus 10 percent of the mean calculations in accord with WAC 448-16-060 as mandated by RCW 46.61.506(4)(a)(vi). Despite the state toxicologist approved method requiring the Dräger to abort every breath test when the WAC 448-16-060 rounding requirement is not satisfied, the state toxicologist continues to allow the Dräger to generate breath test printouts in violation of WAC 448-16-060.
The state toxicologist has known for over a decade that the Dräger generates breath test printouts in violation of WAC 448-16-060. Prior to June 2021, the state toxicologist and her office did not disclose to anyone outside their office that the Dräger machine software failed to comply with WAC 448-16-060 as mandated by RCW 46.61.506(4)(a)(vi) …
The state toxicologist has submitted false or misleading testimony by declaration in tens of thousands of cases stating the Dräger will not generate a breath test printout where the mean is not calculated “in accord with WAC 448-16-060.” The state toxicologist has known since the Dräger was introduced in Washington in 2010 that the Dräger has generated tens of thousands of breath test printouts which have never been “in accord with WAC 448-16-060.” Keller, DRÄGER FINDINGS OF FACT AND CONCLUSIONS OF LAW, pg 4 of 89 (2022).
The Kitsap County District Court recognized the pervasive issues that have arisen following the advent of the Dräger technology. At no point during its function since inception in 2010 has the Dräger machine produced test results that comply with a Washington State Administrative Code Requirement (WAC 448-16-060) that is mandated to be met by state law (RCW 46.61.506(4)(a)(vi)). The Dräger machines had never been operating as required by state administrative code or law and the Kitsap County District Court created their blanket prohibition on the admissibility of such fraudulent and faulty results. This is likely to lead to similar suppression motions in other counties or court that draws on the fact that there are tens of thousands of results being generated by Dräger technology that do not comply with state law.
Many DUI cases rest exclusively on Dräger results this could mean your conviction is a lame duck. Suppression of Dräger results can make the state’s argument weaker resulting in a better disposition or even dismissal.
If you are facing criminal charges related to intoxicated driving related offenses in Kitsap County District Court or another County District Court within the State of Washington, please give Gause Law Offices a call at 206-660-8775 or contact us online at www.emilygauselaw.com. We can take you under our wings and connect you with an attorney to discuss if the Keller ruling is applicable in your case or if there are other legal options or solutions that might be a better resolution for your case.